Kerea v Ma'ash [2014] SBLC 2; Land Case 05 of 2013 (9 May 2014)

IN THE GUADALCANAL LOCAL COURT
CENTRAL DISTRICT
SOLOMON ISLANDS

LC Case No: 05/2013
In the matter of: Vatulikuvukuvu, Butailavu, Horotina and other lands

Between:

John kerea of Simbo tribe
Plaintiff

And:

LennickMa'ash
Defendant

Type of hearing: Preliminary hearing

Date of hearing: 23rd and 24th April 2014
Date of Ruling: 9th May 2014

RULING

Introduction
This land case is about VatulikuvuKuvu, Butailavu, HorotinaJerama, Popoilo, Kolomanivo, Kolohai, Kolotahabui, Sanavura, Veralava, Gilusule, Vatunikuvu and other lands. The chiefs' settlement was said to be heard on 14th February 2013 of which decision is subject of this current proceeding. The chief decision then was in favor of Mr. LennickMa'ash. It was an ex parte hearing. Mr. John Kerea having known of the decision made by the chiefs then compiled documents and lodged case to the Local Court office in Honiara with intention to refer dispute to the Guadalcanal Local Court.

Issue:
Whether or not the Local Court has jurisdiction to fully hear case and determine customary ownership of the lands in dispute.

Facts:

1. John Kerea lodge and filed case to the Local Court office,
   
2. John Kerea did not attend the said chief hearing of 14th February 2013.
   

Findings;

1. Dispute erupted due to logging activities
   
2. An exparte hearing held on 14th February 2013
   
3. John Kerea did not attend the chief hearing
   
4. Notice of hearing given through SIBC service message to all party concerned, defendant then plaintiff in this case did not attend chief hearing.
   
5. Defendant informed court him and the chiefs were intimidated by plaintiff on several occasions.
   
6. The chief hearing was funded only by the plaintiff then defendant in this case.
   
7. Lennick Ma'ash took dispute to the chief hearing due to his people's land were affected by the logging operation and that the lands in dispute were within the concession area where the logging is operated.
   
8. In the absence of the defendant then and in the second chief hearing presiding chiefs heard customary evidences and determine ownership.
   

Rule or Law Apply

The rule or law applicable in this case is that of the requirement of Section 12 (1) paragraphs (a) and (b) of the Local Court Amendment Act (Cap.19) 1985.

Analysis

We refer to Section 12 (1) paragraphs (a) and (b) of the Act as it forms the basis of our orders made the 30th of April 2014.We see that the said requirement was not complied with from the start of the dispute that is when it was referred to the chiefs for settlement.We quote the particular Section, Sub Section and paragraphs as read as "Notwithstanding anything contained in this Act or in any other law, no local court shall have jurisdiction to hear and determine any customary land dispute unless it is satisfied that-

1. The parties to the dispute had referred the dispute to the chiefs
   
2. All traditional means of solving dispute have been exhausted by the chiefs in connection with the dispute
   

100. No decision wholly acceptable to both parties has been made by the chiefs in connection with the dispute". End of quote.
     

We see that with particular regards to paragraph a of Section 12 (1) the parties to the dispute had never referred dispute to the chiefs even though plaintiff then brought dispute to the chiefs but without the knowledge of the defendant party then. Paragraph b of the same Section as a requirement set by the Act where it says all traditional means of solving dispute must be exhausted has not been the case here.

We deem important the above requirements are complied with before the Local Court has jurisdiction to hear case in a full proceeding and to determine customary ownership of the land in dispute.

We see that such requirements were never met hence gives this court the duty to inform parties and chiefs the appropriate processes to take and we make it clear herein that it is only possible for the case to be remitted to the chiefs for a fresh settlement so that the requirements as stated in the Act can be complied with.

We also see that there was in fact no referral made to the Local Court given the plaintiff's non-attendance to the chief hearing. He was in no way affected by the decision of the chiefs even though the dispute included him as a party to the settlement, in fact he never attended thus does not constitute him to produce before the chiefs his claim of ownership thus gives us the view that all traditional means of solving dispute were yet to be exhausted.

Conclusion

In the aforementioned we apply Section 13 (e) of the Act and conclude by making the orders made and pronounced on the 30th day of April 2014 as read as follows;

Orders:

1. Current application of plaintiff John Kereais dismissed.
   
2. Case is remitted to the chiefs to convene a fresh settlement. Settlement to be done within three (3) months from date order made.
   
3. A newly constituted panel of chiefs within area of dispute to hear dispute settlement.
   
4. A proper Notice to be served on parties by the chiefs.
   
5. A new chief hearing to be conducted at a neutral venue. The most possible venue would be at the Tetere Police Station.
   
6. Guadalcanal Police and Participating Police Force if necessary to provide security at the chief hearing and the vicinity surrounding the venue during the chief hearing.
   
7. Costs for new chief hearing to be borne by both parties.
   
8. No costs applied in this proceeding.
   

R/A to GCLAC/High Court is three months from date orders made.

Basil Savani ------------------------ President
Charles Manakako ------------------------ Member
Daniel Sade ------------------------ Member
Peter Suibasia ------------------------ Member
Edward Kekea ------------------------ Member
Timothy Ngele ------------------------ Clerk

Dated this 9th day of May 2014
At Central Magistrates Court
Honiara

THE LOCAL COURT